Exhibit 10.1


 


FIRST AMENDMENT TO THE SL GREEN
REALTY CORP. AMENDED AND RESTATED 2005 STOCK OPTION AND INCENTIVE PLAN


 


This First Amendment (this “Amendment”)
to the SL Green Realty Corp. Amended and Restated 2005 Stock Option and
Incentive Plan (the “Plan”),
is made as of December 9, 2009 by SL Green Realty Corp., a Maryland
corporation (the “Company”).  All capitalized terms used but not defined in
this Amendment shall have the meanings ascribed to such terms in the Plan.


 


The Plan is amended as follows:


 


1.                                       Section 4(e) is amended and
restated as follows:


 


“(e) No award
may be granted under the Plan to any person who, assuming exercise of all
options and payment of all awards held by such person, would own or be deemed
to own more than 9.8% of the outstanding shares of Common Stock.  Subject to adjustments as provided in Section 14,
no Eligible Person shall be granted Awards (with Shares subject to Awards being
counted, depending on the type of Award, in the proportions ranging from 0.7 to
3.0, as described in Section 4(a)) in any one year covering more than
700,000 Shares, it being expressly contemplated that Awards in exclusively one
category (e.g., Options) can (but need not) be used in the discretion of the
Committee to reach the limitation set forth in this sentence; provided that
this limit shall only apply to Awards that are intended to qualify as “performance-based
compensation” under Section 162(m) of the Code and the regulations
promulgated thereunder.”


 


2.                                       Section 5.4 is amended and restated
as follows:


 


“5.4 Exercisability
Upon and After Termination of Optionee.


 


(a) Subject
to provisions of the Award Agreement, in the event the Optionee has a
Termination of Service other than by the Company or its Subsidiaries for Cause,
or other than by reason of death or Disability, no exercise of an Option may
occur after the expiration of the three-month period to follow the termination,
or if earlier, the expiration of the term of the Option as provided under Section 5.3(a);
provided that, if the Optionee should die after the Termination of Service,
such termination being for a reason other than Cause or Disability, but while
the Option is still in effect, the Option (if and to the extent otherwise
exercisable by the Optionee at the time of death) may be exercised until the
earlier of (i) one year from the date of the Termination of Service of the
Optionee, or (ii) the date on which the term of the Option expires in
accordance with Section 5.3(a).


 


(b) Subject
to provisions of the Award Agreement, in the event the Optionee has a
Termination of Service on account of death or Disability, the Option (whether
or not otherwise exercisable) may be exercised until the earlier of (i) one
year from the date of the Termination of Service of the Optionee, or (ii) the
date on which the term of the Option expires in accordance with Section 5.3.


 


(c) Notwithstanding
any other provision hereof, unless otherwise provided in the Award Agreement,
if the Optionee has a Termination of Service by the Company for Cause, the
Optionee’s Options, to the extent then unexercised, shall thereupon cease to be
exercisable and shall be forfeited forthwith.”


 

















 


3.                                       Section 11 is amended and restated
as follows:


 


“11. TAX WITHHOLDING.


 


11.1  In General.


 


The Company shall
be entitled to withhold from any payments or deemed payments any amount of tax
withholding determined by the Committee to be required by law.  Without
limiting the generality of the foregoing, the Committee may, in its discretion,
require the Participant to pay to the Company at such time as the Committee
determines the amount that the Committee deems necessary to satisfy the Company’s
obligation to withhold federal, state or local income or other taxes incurred
by reason of (i) the exercise of any Option, (ii) the lapsing of any
restrictions applicable to any Restricted Stock, (iii) the receipt of a
distribution in respect of Phantom Shares or Dividend Equivalent Rights or (iv) any
other applicable income-recognition event (for example, an election under Section 83(b) of
the Code).


 


11.2  Share Withholding.


 


(a) Upon
exercise of an Option, the Optionee may, if approved by the Committee in its
discretion, make a written election to have Shares then issued withheld by the
Company from the Shares otherwise to be received, or to deliver previously
owned Shares, in order to satisfy the liability for the minimum withholding
taxes due.  Alternatively, if so provided in an Award Agreement, the
Committee may require the Optionee to satisfy such liability by having Shares
then issued withheld by the Company from the Shares otherwise to be received,
or require the Optionee to do so, subject to the Optionee’s ability to elect to
satisfy such liability in cash.  In the
event that the Optionee is to satisfy such liability in Shares, the number of Shares
so withheld or delivered shall have an aggregate Fair Market Value on the date
of exercise sufficient to satisfy the applicable minimum withholding
taxes.  Where the exercise of an Option does not give rise to an
obligation by the Company to withhold federal, state or local income or other
taxes on the date of exercise, but may give rise to such an obligation in the
future, the Committee may, in its discretion, make such arrangements and impose
such requirements as it deems necessary or appropriate.


 


(b) Upon
lapsing of restrictions on Restricted Stock (or other income-recognition
event), the Grantee may, if approved by the Committee in its discretion, make a
written election to have Shares withheld by the Company from the Shares
otherwise to be released from restriction, or to deliver previously owned
Shares (not subject to restrictions hereunder), in order to satisfy the
liability for the minimum withholding taxes due.  Alternatively, if so
provided in an Award Agreement, the Committee may require the Grantee to
satisfy such liability by having Shares withheld by the Company from the Shares
otherwise to be released from restriction, or require the Grantee to do so,
subject to the Grantee’s ability to elect to satisfy such liability in
cash.  In the event that the Grantee is
to satisfy such liability in Shares, the number of Shares so withheld or 


 


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delivered shall have an
aggregate Fair Market Value on the date of the lapsing of restrictions (or
other income-recognition event) sufficient to satisfy the applicable minimum
withholding taxes.


 


(c) Upon the
making of a distribution in respect of Phantom Shares or Dividend Equivalent
Rights, the Grantee may, if approved by the Committee in its discretion, make a
written election to have amounts (which may include Shares) withheld by the
Company from the distribution otherwise to be made, or to deliver previously
owned Shares (not subject to restrictions hereunder), in order to satisfy the
liability for the minimum withholding taxes due.  Alternatively, if so
provided in an Award Agreement, the Committee may require the Grantee to
satisfy such liability by having Shares withheld by the Company from the
distribution otherwise to be made, or require the Grantee to do so, subject to
the Grantee’s ability to elect to satisfy such liability in cash.  In the event that the Grantee is to satisfy
such liability in Shares, any Shares so withheld or delivered shall have an
aggregate Fair Market Value on the date of distribution sufficient to satisfy
the applicable minimum withholding taxes.


 


(d) Upon the
occurrence of any other income-recognition event with respect to an Award
granted under the Plan that occurs upon or concurrently with the issuance or
vesting of, or lapsing of restrictions on, Common Stock, the Grantee may, if
approved by the Committee in its discretion, make a written election to have
Shares withheld by the Company from the Shares otherwise to be issued, vested
or released from restriction, or to deliver previously owned Shares (not
subject to restrictions hereunder), in order to satisfy the liability for the
minimum withholding taxes due.  Alternatively, if so provided in an Award
Agreement, the Committee may require the Grantee to satisfy such liability by
having Shares withheld by the Company from the Shares otherwise to be issued,
vested or released from restriction, or require the Grantee to do so, subject
to the Grantee’s ability to elect to satisfy such liability in cash.  In the event that the Grantee is to satisfy
such liability in Shares, the number of Shares so withheld or delivered shall
have an aggregate Fair Market Value on the date of such income-recognition
event sufficient to satisfy the applicable minimum withholding taxes.


 


(e) For
purposes of determining the number of Shares to be withheld or delivered to
satisfy the applicable minimum withholding taxes pursuant to Section 11.2
of the Plan, the Fair Market Value of the Shares shall be calculated in the
same manner as the Shares are valued for purposes of determining the amount of
withholding taxes due.


 


11.3  Withholding Required.


 


Notwithstanding
anything contained in the Plan or the Award Agreement to the contrary, the
Participant’s satisfaction of any tax-withholding requirements imposed by the
Committee shall be a condition precedent to the Company’s obligation as may
otherwise be provided 


 


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hereunder to provide
Shares to the Participant and to the release of any restrictions as may otherwise
be provided hereunder, as applicable; and the applicable Option, Restricted
Stock, Phantom Shares, Dividend Equivalent Rights or other Award shall be
forfeited upon the failure of the Participant to satisfy such requirements with
respect to, as applicable, (i) the exercise of the Option, (ii) the
lapsing of restrictions on the Restricted Stock (or other income-recognition
event), (iii) distributions in respect of any Phantom Share or Dividend
Equivalent Right or (iv) any other income-recognition event with respect
an Award granted under the Plan.”


 


4.                                       Section 14 is amended by added the
following paragraph (f) to the end of such section:


 


“(f) Upon the
effective time of a Sale Event, with respect to Awards granted on or after the
date of this Amendment, at the election of the Committee, either (i) (A) such
Options and Stock Appreciation Rights that are not exercisable immediately
prior to the effective time of the Sale Event shall become fully exercisable as
of the effective time of the Sale Event, (B) all such other Awards with
time-based vesting, conditions or restrictions shall become fully vested and
nonforfeitable as of the effective time of the Sale Event, (C) all such
Awards with conditions and restrictions relating to the attainment of
performance goals may become vested and nonforfeitable in connection with a
Sale Event in the Committee’s discretion (to the extent not provided for in the
Award) and (D) all such outstanding Awards shall terminate or (ii) such
Awards shall be assumed by the successor entity and continue with appropriate
adjustment pursuant to Section 14(a) above.  In the event of the termination of Awards
pursuant to clause (i) of the prior sentence, (i) the Company shall
have the option (in its sole discretion) to make or provide for a cash payment
to the grantees holding Options and Stock Appreciation Rights, in exchange for
the cancellation thereof, in an amount equal to the difference between (A) the
Sale Price multiplied by the number of shares of Common Stock subject to
outstanding Options and Stock Appreciation Rights (to the extent then
exercisable (after taking into account any acceleration hereunder) at prices
not in excess of the Sale Price) and (B) the aggregate exercise price of
all such outstanding Options and Stock Appreciation Rights; or (ii) each
grantee shall be permitted, within a specified period of time prior to the
consummation of the Sale Event as determined by the Committee, to exercise all
outstanding Options and Stock Appreciation Rights held by such grantee effective
as of the effective time of such Sale Event. 
For purposes of the Plan, (i) “Sale Event”
shall mean (A) the sale of all or substantially all of the assets of the
Company on a consolidated basis to an unrelated person or entity, (B) a
merger, reorganization or consolidation in which the outstanding shares of
Common Stock are converted into or exchanged for securities of the successor
entity and the voting securities of the Company outstanding immediately prior
to such merger, reorganization or consolidation would represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) less than 50% of the total voting power of the voting
securities of the surviving entity outstanding immediately after such merger,
reorganization or consolidation or cease to have the power to elect at least a
majority of the board of directors or other governing body of such surviving
entity, or (C) the sale of all of the Common Stock of the Company to an
unrelated person or entity and (ii) “Sale Price” shall mean the value as
determined by the Committee of the consideration payable, or 


 


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otherwise to be received
by stockholders, per share of Common Stock pursuant to a Sale Event.”


 


5.                                       All other terms and conditions of the
Plan shall be unchanged and remain in full force and effect.


 


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IN WITNESS WHEREOF, the Company has executed this Amendment
as of the day and year first above written.


 


	
   

  	
  SL GREEN REALTY CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marc Holliday

  
	
   

  	
   

  	
  Marc Holliday

  
	
   

  	
   

  	
  Chief Executive Officer